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Cherry v. Corizon Health, Inc.

United States District Court, S.D. Indiana, Indianapolis Division

February 28, 2017

DANNY WILLIAM CHERRY, Plaintiff,
v.
CORIZON HEALTH, INC., and DR. LEVINE, Defendants.

          ENTRY GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND DIRECTING ENTRY OF FINAL JUDGMENT

          SARAH EVANS BARKER, JUDGE.

         For the reasons explained in this Entry, the defendants' motion for summary judgment [dkt. 34] is granted.

         I. Background

         The plaintiff in this 42 U.S.C. § 1983 civil rights action is Danny Cherry (“Mr. Cherry”). The defendants are Corizon LLC (referred to as Corizon Health, Inc.) (“Corizon”) and Dr. Scott Levine (“Dr. Levine”). At all relevant times, Mr. Cherry was incarcerated at the Pendleton Correctional Facility (“Pendleton”). He is currently confined at the New Castle Correctional Facility.

         Mr. Cherry alleges in his amended complaint, filed on December 17, 2015, that Corizon has a policy and practice of forcing injections when it is unwarranted and it does not properly train its medical staff at Pendleton. He also alleges that Dr. Levine ordered forced injections of antipsychotic medication against his will because he was on a religious fast. He alleges violations of his First and Eighth Amendment rights and breach of contract as a third-party beneficiary.

         The defendants seek resolution of Mr. Cherry's claims through the entry of summary judgment. Mr. Cherry has opposed the motion, albeit he did so four and a half months after the motion was filed and he submitted no evidentiary materials. The Court has considered Mr. Cherry's opposition. The defendants replied and the motion is ripe for resolution.

         II. Summary Judgment Standard

         Summary judgment is appropriate if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A dispute about a material fact is genuine only “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). If no reasonable jury could find for the non-moving party, then there is no “genuine” dispute. Scott v. Harris, 127 S.Ct. 1769, 1776 (2007).

         III. Discussion

         A. Undisputed Facts

         On the basis of the pleadings and the portions of the expanded record that comply with the requirements of Rule 56(c)(1) of the Federal Rules of Civil Procedure, construed in a manner most favorable to Mr. Cherry as the non-moving party, the following facts are undisputed for purposes of the motion for summary judgment:

         Mr. Cherry has a history of bipolar disease, depression, psychosis, and delusions. He is also HIV-positive. On April 27, 2015, he was transferred from the Marion County Jail to the Reception Diagnostic Center. On May 15, 2015, Mr. Cherry was transferred to Pendleton.

         On June 9, 2015, Dr. Levine, a psychiatrist at Pendleton, conducted a chart update on Mr. Cherry's medications and mental health status. At that time, Dr. Levine recommended continuing Mr. Cherry's Celexa prescription as treatment for depression. Mr. Cherry's records revealed that he had previously taken Geodon, an antipsychotic medication, with a May 9, 2015, stop date.

         On June 30, 2015, Mr. Cherry was placed in administrative segregation for writing a threatening letter to a female guard. On July 2, 2015, he was seen by a counselor for segregation monitoring. During the encounter, Mr. Cherry presented with poor reasoning, impulse control, judgment and insight. In August 2015, Mr. Cherry refused medications and medical care including a recommended Hepatitis B vaccine and a blood draw to evaluate his HIV infection.

         On September 4, 2015, Mr. Cherry saw a nurse in the facility clinic for right flank pain. His treating physician, Dr. Paul Talbot, was concerned that Mr. Cherry could be exhibiting signs of liver complications from his HIV infection, so he was sent to the emergency room at St. Vincent's Hospital for evaluation of severe acute right upper quadrant abdominal pain. At the time, it was noted that Mr. Cherry weighed 242 pounds. After a CT scan reflected no abnormalities related to his complaints of abdominal pain, Mr. Cherry was discharged from the emergency room. No further treatment was recommended and Mr. Cherry did not complain further of abdominal pain.

         On September 8, 2015, a chart note entered by Susan Resch, RN, reflected that Mr. Cherry stated he was going on a hunger strike. It was also noted that Mr. Cherry had a history of suicide attempts, he had been diagnosed as bipolar, and his sister had committed suicide. Mr. Cherry was determined to be a suicide risk.

         On September 8, 2015, Mr. Cherry was seen in the urgent care unit at Pendleton by staff psychologist, Dr. Roger Perry, for an initial Behavioral Health and Suicide Monitoring visit. Dr. Perry reported Mr. Cherry was anxious, agitated, and disheveled. His reasoning, judgment, and insight were poor. His attitude was hopeless and uncooperative. Mr. Cherry spoke rapidly about inept medical care, various miscarriages of the legal system, an unfair trial, and unfair charges to his inmate account. Mr. Cherry stated he had been refusing his HIV medication because it made him sick. During the encounter, Mr. Cherry denied suicidal ideation, but talked about loneliness, hopelessness, and frustration. He stated that he might starve himself in order to meet Christ's record of fasting for forty days. His thought processes were somewhat tangential, and his thought content revealed paranoia, delusions, and phobias. Mr. Cherry was diagnosed as symptomatic for chronic bipolar disorder and depression, with exacerbation. It was noted that he had a past history of self-harm. Dr. Perry recommended that Mr. Cherry be placed in the Pendleton Hospital Restraint Unit (“HRU”) in the high risk unit on close suicide observation. Dkt. 35-1, at p. 5; dkt. 35-2, at p. 323-24.

         On September 10, 2015, Mr. Cherry was seen by Dr. Perry for a suicide monitoring visit. Dr. Perry reported that Mr. Cherry was uncooperative, paranoid, and appeared delusional. His thought processes were incoherent, and showed loose associations, as well as flight of ideas and perseveration. He repeated his concerns over and over again. He showed a flawed sense of logic and stated he feared government entities and representatives were out to destroy him. Mr. Cherry had refused seven meals to date, and pledged to cleanse himself so as to be worthy of sacrificing his life so things could be better for others. And though he denied suicidal ideation or intent, Mr. Cherry did not appear to understand the danger of his actions. Dkt. 35-1, at p. 5; dkt. 35-2, at pp. 307-09.

         On September 10, 2015, Mr. Cherry began refusing all medical care, including refusing to be weighed, give urine samples, have his vital signs taken or blood drawn, and, at times, even to talk to medical staff. He was regularly assessed by nursing and medical staff as part of the suicide observation protocol. Dkt. 31-5, at p. 5; dkt. 35-2, at pp. 13-14, 166-306.

         On September 11, 2015, Mr. Cherry was seen by Dr. Perry who reported that he continued to be unstable. He had missed ten meals but insisted he was not on a hunger strike and was instead experiencing a religious purification. Although Mr. Cherry denied suicidal ideation, he seemed unaware that his behavior of refusing all medications and meals could become life-threatening. Dkt. 35-1, at p. 5.

         On September 14, 2015, Mr. Cherry was seen by Dr. Paul Talbot for an unscheduled visit in response to his continued hunger strike. Dr. Talbot noted that Mr. Cherry had been on a hunger strike for 7-8 days with 21 or more missed meals. Though Mr. Cherry had been drinking some water, a visual examination revealed that his lips and mucus membranes were dry. He refused all medical care, a nursing and medical assessment, food, vital sign check, weight check, and urine or blood tests. He would not sign refusal of treatment forms. He was informed that continued refusal of food and medical treatment could cause damage to his organs, including his brain. He was advised to eat and allow medical testing. Mr. Cherry's refusal of treatment form was signed by the physician, nurse, and officer present. Dkt. 35-1, at p. 6.

         On September 15, 2015, Dr. Levine saw Mr. Cherry for a medication management visit. He noted that, in addition to his hunger strike, Mr. Cherry was now refusing hydration. Mr. Cherry was minimizing the risks of his behavior, stating “Jesus fasted for 40 days and 40 nights.” He claimed his actions were in protest of multiple wrongs based on beliefs he was not being protected from assault (for which Internal Affairs found no supporting evidence), that medical was doing venipuncture in order to manipulate him, and that prison staff had stolen his legal work. Mr. Cherry acknowledged a history of psychiatric care, but he continued to refuse pharmacotherapy. During the encounter, Mr. Cherry spoke loudly, excessively, and rapidly, with flight of ideas. His reasoning, judgment, and insight were very poor. He was unable to understand and could not agree to refrain from harmful action. Mr. Cherry exhibited signs of delusional ...


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